Questions:
1: Advise the company as to its general legal position and potential liabilities in Nigel’s case?
2: Discuss the legal course(s) of action/remedies that might be available to Jane if she is in fact summarily dismissed and her accrued holiday pay withheld in the circumstances outlined?
3: Two “casual operatives” who were formerly permanently employed by the company apply to an employment tribunal for written statements of their particulars of employment under Section 1 of the Employment Rights Act 1996. The company responds by claiming that it is not required to provide them with such statements, since none of its casual operatives are “employees”.
a: Give your reasoned opinion as to whether the tribunal would agree with the company’s claim about the two casual operatives’ employment status.
b: Can the casual operatives more generally do anything about the level of their wages?
4: Tristan feels that he is unable to comply with his manager’s instruction. He asks for your advice on his legal position and any protection he may have?
Answers:
1. The Contract of Employment is lawfully binding agreement between the parties, i.e. the employer and employee, formed when one gives consent to work for the employer for payment. There can be an oral contract, but it should be in writing to evade the dispute. The employment contract encloses the rights and duties of the employers and the employees, which is called the ‘terms’ of the contract. It also includes the Statement of Particulars (Linde Leonard, Stanley and Doucouliagos 2014).
Section 4 of the Employment Rights Act, 1996 (ERA) deals with the matter of changes in the Statement of Particulars of an employment contract. Even the employment of an employee before the due period, still the employer has the liability to provide the Statement of Particulars to the employee.
In case, any changes made in the items, the employer must supply the employee with the requisite details of the changes within one month of the changes made. The employer is not required to produce an entire new Statement of Particulars. The company can show a document in which it is shown what changes has been contained and the effective date of the modifications. Without the previous consent of the employee, the employer is not able to make any changes in the employment contract including the Statement of Particulars (Vandekerckhove and Lewis 2012).
In Vision Events (UK) Ltd v Paterson, the respondent claimed against the policy of unused flexi time brought under the legislation of the ‘unauthorized deduction of wages’. Paterson had the entitlement of flexi-time in case he worked more than 45 hours per week as per the contract; Paterson entitled to take a time off, as per the time suits to by his employer. The flextime scheme about non-taken Flexi-hours leave was not detailed in the contract in case there would be termination of the contract. After four years, Paterson was made redundant, so he has asked the employers to pay for the accrued flextime that was more than 1,000 hours. The employer offered Paterson that they would pay a part of the hours he worked. However, Paterson refused to take the partial payment, and the offer of the company was withdrawn. Paterson filed a case to the Employment Tribunal for the unfair dismissal and unlawful deductions from wages. The Tribunal rejected the claim for unfair dismissal. However, the Tribunal held that there was an illegal deduction of the fees, and made an order against Vision Event for payment of £12,000 to Paterson (Vision Events (UK) Ltd v Paterson [2014]).
The employer made an appeal to the Employment Appeal Tribunal (EAT). The EAT found that the Tribunal asked the question whether there was any implied term in the contract regarding the payment of the wages in case the employee did not take the leave of flexi-time. However, the question was not correct. The Employer without any legal binding made a goodwill offer though that does not alter the position as the company were not bound to pay the employee. The EAT found that there were no terms of the contract that mentioned that the employer would be paid if he did not take leave for flexi-time (Vision Events (UK) Ltd v Paterson [2014]).
In the present case, when the service engineer had joined in the company and signed the contract, there was no mention of the overtime rule. The term induced in the employment contract by issuing a document having changes in the employment particulars. Without the consent of the employees, the employer is not able to produce any term in the employment contract. As the employee named Nigel has not given the consent for the changes incorporated in the Statements of Particulars, the employer cannot pressurize the employee to act accordingly. The employer cannot suspend Nigel without pay unless he agrees to work overtime as they had not fulfilled the criterion of the employment contract (Gospel and Edwards 2012).
2. Section 86 of the Act provides that the before termination of the contract, the employers must take care of the right to reasonable notice of the employees. Therefore, it can be said that before dismissed from service, every individual has the right to get a minimum of one week’s notice. To get the notice, the employee should have worked for more than a month in the organisation. The employees have the same responsibility to give one-week reasonable notice before leaving the service. The employer can pay in place of notice in case that is written into the engagement contract. The parties may agree to forgo their rights within the notice period (Tombs and Whyte 2013).
Section 94 of the Act gives a right against the unfair dismissal to the employees. This right is perhaps the most fundamental right, as, by this act, a former employee of the company may take an action against the employers in case his/her rights were breached during his/her employment.
There are fair reasons to dismiss the service of an employee if it,
- there is a question of capability or the qualifications of the worker to perform work for which the employer employed the employee,
- the conduct of the employee may be something that attracts to the dismissal of service,
- the retirement of the staffs,
- is the matter of redundancy of the employee, or
- is that the worker may not continue in the position to work that he held without any infringement of any duty or the restrictions obliged by or under any enactment (Cingano et al. 2014).
In this regard, we can discuss the case of Laws Stores Limited v Oliphant, where a worker was terminated as she failed to follow the till process. She did not register the sum of £1.14 in respect of a coffee jar and the money was not put in the till or offer any receipt. The employers followed the disciplinary procedure, which expressed that as the employer neglects to fall out the till procedure, she managed a gross misconduct. For gross misconduct, the penalty is an instant release from serving. The employer, therefore, dismissed the employee. The service dismissal was held by the court as procedurally unfair. The employee did not have the adequate opportunity for providing clarification. The court also found that only one mistake on the part of the employee was not serious misconduct, which may justify the instant dismissal. The EAT again stated that the disciplinary proceeding always provided that the gross misconduct would commonly result in immediate dismissal so that they allowed an element of discretion. (Laws Stores Limited v Oliphant [1978])
In Riverside Health Authority v Clarke, the service of the nurse was dismissed for the reason of gross misconduct with willful negligence while doing the night shift. The nurse worked for 25 years. The EAT found that though the act of the employee was of gross misconduct, the employer before unreasonably acting should have seen the long term service of the employee and may be considered the failure. Further, in the case of the unfair dismissal, if the employer follows the rules, then it should be known to the employees that for which reason, one could be tried for misconduct. (Riverside Health Authority v Clarke [1991])
With the help of the above cases, we can say that the employer is not able to dismiss the service of the employee. The employer cannot be dismissed for gross misconduct in the service without giving notice for at least one week and without going through the disciplinary proceeding. The company cannot withhold the payment in respect of the outstanding holiday debt. As the company continuously employed Jane for 1 year, 11 months, the company needs to give one-week notice before termination. In the case of unfair dismissal, the employer has the remedy of breach of contract claim(s), based on the common law (van Voss and Ter Haar 2012).
3. (a) The management and legal status of casual operatives or workers get the least priority in the work list of the employers. With frequent other pressures implicated in running a business of the company, and the view of the organisation that the casual operatives have little or no legal rights, this is predictable. However, it is not in knowledge of the employer that casual operatives have significant customer facing responsibilities, and enjoys essential legal rights (Deakin, Malmberg and Sarkar 2014).
There is no precise legal meaning of the term casual operatives or workers. The casual workers are the individuals who are called for work on the requirement of the working basis. These workers are referred as the bank staff. These employers make these operatives work in the business as their intention is that these people will not get the employment status and will not have the legal rights as the employees enjoy.
The term, casual operatives seem like there is an informal relationship between the employer and those employees. However, there exists a tricky area of law, and the companies should be aware of the fact that the casual operatives also enjoy all the legal rights, including the particulars of the employment, unfair dismissal protection rights, and the payment of redundancy pay (Bassanini and Garnero 2013).
There are three key elements to complete the contract of employment:
- the employee obliged to perform the work of the employer personally,
- the parties must have a mutuality of obligation working together, and
- the employer has the right to control the employee during the time of work (Ewing and Qc 2012).
The companies try to avoid the key elements in the casual operative contracts. Tribunals are conscious that the contracts can be artificial. Therefore, the terms of the agreement (verbal or written) are only the initial point. To determine the contract, consideration of each of the circumstances is necessary. In this connection, the Supreme Court makes a good example in the case of Autoclenz Ltd v Belcher. This case discussed the scope of legislative protection of the rights of casual operatives. The claimants, a group of car valeters, stated in their contracts that they were self-employed. The contract had substitution clauses that allow them to offer substitutes rather than perform the work personally. No mutual obligation was found in the contract and there was no obligation of the claimants on the employers. The Supreme Court held that there was no reflection of the true relationship between the parties with the terms of the contract. There was a requirement of acceptance of work offered to the individuals and to perform the personally, for the payment given by the employers and abide by their direction (Autoclenz Ltd v Belcher [2011]).
(b) The casual operatives or workers are not the employees of the company, although they enjoy important legal rights. These rights include the paid annual leave, the national minimum wage, and the protection against any deductions from wages, and any discrimination.
The employers should carefully consider the fact what they want from their casual operatives for avoiding the high risks of disputes and uncertainty at work. The company should make a draft of their requirements and the working arrangements for the casual workers. Completing the arrangements, the employers can be used zero hours contracts for the casual employees, as well as for workers (Clauwaert and Schomann 2012).
The employers should review the contracts of casual operatives and their working arrangements regularly. As the working relationship develops, the employment condition of the casual operatives can be changed. In case the employment relationship exists for a long time, the scope for reflection on the contract term diminishes and the need occurs for updating the contract.
As the casual operatives are entitled to the paid annual leave, the employers should carefully monitor the matter. The common source of dispute between the casual operatives or workers and the employers is related to the rights of the paid annual leave.
Finally, irrespective of the status of employment, casual workers have essential legal rights. Although protection against unfair dismissal only relates to the permanent employees, the situation of the casual operatives may not be very clear. The employers should take care in processing the termination of the casual operatives (Heslin, Bell and Fletcher 2012).
4. Positive discrimination is illegal work in the case of working in the company. The Manager in the HR department gave instruction to lose the applications from the minor classes. There is no intention of setting the quota for recruitment in the post of casual operatives. For example, the recruitment process carried out by the people of racial minority groups, is not permissible as we can say the quota in recruiting the worker would be a positive discrimination. On the contrary, target establishment is legal. A target in the work encourages a positive measure that will be taken within the domain of law. However, a quota must be the figure to be achieved at any costs, without the merit of the person applied for the job (Stevens, Hussein and Manthorpe 2012).
The job of the HR is to shortlist the candidates who can appear for the interview for a detailed post and are potential for the job offered regarding the qualification and the experience of a particular person. The HR is able to shortlist the name of the candidates by comparing the applications with a prepared employee requirement. The approach of shortlisting by this way ensures the objectivity and it minimises the possibility of biases on the factor of age, sex, or race that influence the choice of the candidates. The factors like race, sex, etc. should not play any part in the process of shortlisting. The standard for appointment must be decided before the process for recruitment started, not at the time when one saw the CV and know the race of the candidate (Thoits 2013). In Bishop v The Cooper Group plc t/a Coopers Thames Ditton, in an interview, two male applicants succeed in their interview for the work as the car technicians, but one highly qualified and appropriate female applicant rejected the job unlawfully. The employment tribunal held that the organisation had justified its decision that they determine the criteria of recruitment after applying them rather than take a decision earlier (Bishop v The Cooper Group plc t/a Coopers Thames Ditton (1992)).
In the London Borough of Lambeth v Commission for Racial Equality, the applicant encouraged more applications for the housing benefit from the members of the ethnic minorities. So, the applicant advertised for the posts in the department of housing affirming that the positions should fill by the black community members. However, the Commission for Racial Equality (CRE) opined that there is no application of the GOQ of personal services in the present case as the candidates who will be successful to get the managerial job will not involve in any particular personal service. They also found that the description of the section of the job holders was vague. The view of the CRE gets the support from the Court of Appeal (London Borough of Lambeth v Commission for Racial Equality (1990)).
In the present case, the Manager gave the instruction not to consider the applications of the candidate who are Muslims or from Asia continent. It leads to the racial discrimination. Here, Tristan has a right to say no to his Manager and can start an action against the act of the Manager in the Employment Tribunal (Berry and Bell 2012).
References
Autoclenz Ltd v Belcher [2011] UKSC 41.
Bassanini, A. and Garnero, A., 2013. Dismissal protection and worker flows in OECD countries: Evidence from cross-country/cross-industry data. Labour Economics, 21, pp.25-41.
Berry, D. and Bell, M.P., 2012. Inequality in organizations: stereotyping, discrimination, and labor law exclusions. Equality, Diversity and Inclusion: An International Journal, 31(3), pp.236-248.
Bishop v The Cooper Group plc t/a Coopers Thames Ditton [1994] IT/60910/92.
Cingano, F., Leonardi, M., Messina, J. and Pica, G., 2014. Employment protection legislation, capital investment and access to credit: Evidence from Italy. The Economic Journal.
Clauwaert, S. and Schomann, I., 2012. Crisis and National Labour Law Reforms: A Mapping Exercise. Eur. Lab. LJ, 3, p.54.
Deakin, S., Malmberg, J. and Sarkar, P., 2014. How do labour laws affect unemployment and the labour share of national income? The experience of six OECD countries, 1970–2010. International Labour Review, 153(1), pp.1-27.
Ewing, K.D. and Qc, J.H., 2012. Unfair Dismissal Law Changes—Unfair?.Industrial Law Journal, 41(1), pp.115-121.
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Heslin, P.A., Bell, M.P. and Fletcher, P.O., 2012. The devil without and within: A conceptual model of social cognitive processes whereby discrimination leads stigmatized minorities to become discouraged workers.Journal of Organizational Behavior, 33(6), pp.840-862.
Lambeth LBC v Commission for Racial Equality [1990] ICR 768.
Laws Stores Limited v Oliphant, [1978] IRLR 251 (EAT).
Linde Leonard, M., Stanley, T.D. and Doucouliagos, H., 2014. Does the UK Minimum Wage Reduce Employment? A Meta‐Regression Analysis. British Journal of Industrial Relations, 52(3), pp.499-520.
Riverside Health Authority v Clarke, [1991] EAT 582/91.
Stevens, M., Hussein, S. and Manthorpe, J., 2012. Experiences of racism and discrimination among migrant care workers in England: findings from a mixed-methods research project. Ethnic and Racial Studies, 35(2), pp.259-280.
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Vision Events (UK) Ltd v Paterson [2014] UKEATS/0015/13/BI)
